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state of Colorado, relied upon by counsel for complainant, confer jurisdiction upon the courts of the state in a case of this character, the complainant must resort to those courts.
§ 613. Suit against county.— When a county, duly authorized, issues warrants for money payable to bearer, and a bank holds them for good consideration, a subsequent state law taking away the suable character of counties impairs the obligation of the contract, and is therefore unconstitutional, and will be no bar to a suit by the bank on the warrants in the federal courts. National Bank v. Sebastian County, 5 Dill., 416 (CONST., §§ 1903-4).
§ 614. The board of supervisors of a county in Illinois may be sued in a federal court, notwithstanding the law of the organization of counties, which had been construed by the supreme court of Illinois to exempt them from suit except in the county circuit courts. Cowles v. Mercer County,* 7 Wall., 118.
§ 615. A statute of Missouri providing that all actions whatsoever against any county shall be brought in the circuit court of such county does not deprive the federal courts of jurisdiction, in a proper case, in an action against a county of that state. Cunningham v. County of Ralls.* 1 McC., 117.
§ 616. State insolvent law. An order issued by the legislature of a state before which a debtor has applied for the benefit of the insolvent act of the state, ordering a stay of all process against the debtor while such application is pending, is not a bar to an action against the debtor by a creditor, resident in another state, in the circuit court of the United States. Babcock v. Weston, 1 Gall., 169.
§ 617. The state laws as to the discharge of prisoners from custody do not apply to prisoners committed by United States authority to the custody of a sheriff. McNutt v. Bland, 2 How., 9 (SS 878-880).
§ 618. Penal law of state. Under a Mississippi statute, a sheriff failing to pay over moneys collected on an execution was liable with his sureties for the full amount collected, with twenty-five per cent. damages and interest at eight per cent., the same to be recovered upon motion before the court which rendered the judgment. A similar proceeding was instituted in the circuit court against a marshal, and the motion was granted. On error it was held that the process act of 1828 adopted the statute in question, to be applied in the federal court so far as to authorize a judgment by motion for failing to pay over moneys collected for the full amount, with legal interest; but that the provision giving twenty-five per cent. damages was a penal law of the state and could not be enforced by a federal court; hence for so much the judgment could not stand. Gwin v. Breedlove,* 2 How., 29.
§ 619. State law as to joinder of maker and indorser.— A suit was brought in the United States circuit court for Mississippi, by a non-resident plaintiff, in which the maker and indorser, citizens of Mississippi, were joined as defendants. This was to satisfy a statute of the state requiring such joinder, which had been adopted as a rule of court by the circuit judge. Held, that the statute had no effect in the United States court, it not being competent for a state legislature to regulate proceedings in or to increase or diminish the jurisdiction of a United States court. It could not give jurisdiction over the maker because of the exception in the eleventh section of the judiciary act, forbidding recovery by an assignee in cases where there could be no recovery if no assignment had been made; and it could not take away the jurisdiction of the court over the indorser. Keary v. Farmers' and Merchants' Bank,* 16 Pet., 89.
§ 620. State law as to joint and several liability.— By a statute of Mississippi a joint liability on a note is made a joint and several liability. When a suit was begun in the circuit court for Mississippi against several parties who were jointly liable, and a discontinuance being entered as to all but one, judgment was rendered against him, held, that the case was governed by the local statute, and the judgment was valid. Coffee v. Planters' Bank,* 13 How., 183. § 621. The United States circuit court for Illinois adopts the remedies authorized in the state courts, though they may be local and peculiar, and accordingly will issue a scire facias on a mortgage under the statute of the state. Strachen v. Clyburn.* 3 McL., 174.
§ 622. Forcible entry and detainer.— A statute was passed in Illinois, in 1874, giving the state courts jurisdiction in cases of forcible entry and detainer. Held, that this is a civil suit within the meaning of the judiciary act of 1789, and in proper cases the federal courts have jurisdiction. Wheeler v. Bates,* 6 Biss., 88.
§ 623. Discharge of garnishee.— Where a party was summoned as a trustee in Massachusetts, in the circuit court for that district, and upon his disclosure it appeared that by the state statute, as interpreted by the local courts, he would be entitled to his discharge, he was discharged. Peters v. Rogers,* 5 Mason, 555.
§ 624. Foreclosure of mortgage. A state statute allowing guardians to mortgage the property of wards provided that foreclosure proceedings should be begun only by petition to a certain state court. Held, that, notwithstanding this proviso, a mortgagee in a proper case may file his petition in the federal court; and the fact that the subject-matter of this suit is real property, and that the state ought to have controlling authority in the alienation of real estate within its limits, is no ground of distinction between this and other similar cases. Davis v. James,* 2 Fed. R., 618.
§ 625. Miscellaneous.- When a question of jurisdiction is decided by a state court of general jurisdiction, the same question cannot be raised in the federal courts by the same parties, though it is within the power of the court to investigate the point and see if the decision is correct. Moch v. Virginia Fire & Mar. Ins. Co., 10 Fed. R., 709 (§§ 501-507).
§ 626. On a bill in equity to restrain the defendants from building a bridge over the Connecticut river between Saybrooke and Lynn, it was held that the Connecticut being a public river at this point, this court had jurisdiction of the suit, although the erection of the bridge was authorized by the Connecticut legislature. Baird v. Shore Line R'y Co., 6 Blatch., 276.
§ 627. A federal court is not limited in its jurisdiction by a statute passed by the legislature of a state declaring that "settlements made in the county court shail be prima facie evidence in favor of the accounting party," as this statute is not a rule of evidence, but a declaration of the force and effect of the judicial decree in the county court approving the settlement. Pulliam v. Pulliam, 10 Fed. R., 27.
5. Extent of, When Once Attached; Auxiliary Proceedings.
SUMMARY — Bill of revivor, § 628. — Creditor's bill in aid of judgment, § 629. — Hearing third parties irrespective of citizenship, when necessary, § 630.— Bill involving new matters not an auxiliary bill, §§ 631, 632.— Creditor's bill in circuit court not auxiliary to suit in district court, § 633.
§ 628. The federal court has jurisdiction of a bill brought by an administrator to revive a suit abated by death, without regard to the citizenship of the administrator. Clarke v. Matthewson. §§ 634, 635.
§ 629. A creditor's bill filed in aid of an unsatisfied execution is a continuation of the original suit, and the jurisdiction of the court is not affected by a change of residence subsequent to the institution of the suit, and before the filing of the creditor's bill. Hatch v. Dorr, $ 636, 637.
§ 630. In a cause in which jurisdiction depends upon the citizenship of the parties, if the rights and interests of third parties become involved, and no state court could give relief without a conflict of jurisdiction, the federal court will grant such third parties a hearing, irrespective of their citizenship, so far as to protect their rights and interests, and no farther. Conwell v. Canal Co., §§ 638-642.
§ 631. A bill in equity cannot be deemed a proceeding incidental to a suit formerly begun, when it involves the decision of new matters and between different parties. Ibid.
§ 632. When in the course of a suit in the circuit court for dissolution of a partnership, a supplemental bill was filed bringing in a third party, charging him with collusion with defendant and seeking from him the specific performance of a contract, this was an original bill and not a supplemental proceeding of which the court could take jurisdiction irrespective of citizenship. Myers v. Dorr, §§ 643-647.
§ 633. The circuit court has no jurisdiction to entertain a creditor's bill filed in that court in aid of a decree obtained in the district court, when all parties are citizens of the same state. Winter v. Swinburne, §§ 648–650.
[NOTES.-See §§ 651-677.]
CLARKE v. MATTHEWSON,
(12 Peters, 164–173. 1838.)
Opinion by MR. JUSTICE STORY.
STATEMENT OF FACTS.- This is the case of an appeal from the circuit court of the district of Rhode Island. The original cause was a bill in equity brought by Willard W. Wetmore, deceased, a citizen of Connecticut, against the defendants, Henry Matthewson and others, all citizens of Rhode Island, for an account upon certain transactions set forth in the bill, and with a prayer
for general relief. After the cause was at issue upon the hearing, it was, by agreement of the parties, ordered by the court to be referred to a master to take an account; and pending the proceedings before the master, the intestate died. Administration upon his estate was duly taken out by the present plaintiff, John H. Clarke, in the state of Rhode Island; the laws of Rhode Island requiring that no person not a resident of the state should take out letters of administration; and also making such administration indispensable to the prosecution and defense of any suit in the state, in right of the estate of the intestate. Clarke filed a bill of revivor in the circuit court, in June, 1834, in which he alleged himself to be a citizen of Rhode Island, and administrator of Wetmore, against the defendants; whom he alleged, also, to be citizens of the same state. So that it was apparent upon the face of the record, that the bill of revivor was between citizens of the same state. Upon motion of the defendants, at the November term of the circuit court, A. D. 1835, the court ordered the bill of revivor to be dismissed for want of jurisdiction; and from this decretal order, the present appeal has been taken by the appellant.
The case, as it was decided in the circuit court, is reported in 2 Sumner, 262, 268; and the ground of dismissal was, that the bill of revivor was a suit between citizens of the same state. The judiciary act of 1789, ch. 20, § 11 (1 Stats. at Large, 78), confers original jurisdiction upon the circuit courts of all suits of a civil nature at common law and in equity, where the matter in dispute exceeds the sum or value of $500, and the United States are plaintiffs or petitioners, or an alien is a party; or the suit is between a citizen of the state where the suit is brought, and a citizen of another state. If, therefore, the present had been an original bill brought between the present parties, it is clear that it could not have been maintained; for, although the plaintiff could sue in autre droit, and as administrator of a citizen of another state, yet the suit would be deemed a controversy between him and the defendants, and not between his intestate and the defendants. This is the necessary result of the doctrine held by this court in Chappedelaine v. Dechenaux, 4 Cranch, 306, and Childress v. Emory, 8 Wheat., 642.
634. A bill of revivor is a continuation of the original suit, and an administrator may file it although a citizen of the same state with respondent. (a)
The circuit court treated the present case as falling within the same predicament. In this we are of opinion that the court erred. The bill of revivor was, in no just sense, an original suit, but was a mere continuation of the original suit. The parties to the original bill were citizens of different states, and the jurisdiction of the court completely attached to the controversy; having so attached, it could not be devested by any subsequent events; and the court had a rightful authority to proceed to a final determination of it. If, after the commencement of the suit, the original plaintiff had removed into and become a citizen of Rhode Island, the jurisdiction over the cause would not have been devested by such change of domicile. So it was held by this court in Morgan's Heirs v. Morgan, 2 Wheat., 230, 297; and Mollan v. Torrance, 9 Wheat., 537; and Dunn v. Clarke, 8 Pet., 1.
The death of either party, pending the suit, does not, where the cause of action survives, amount to a determination of the suit. It might in suits at common law, upon the mere principles of that law, have produced an abatement of the suit, which would have destroyed it. But in courts of equity, an abate
(a) Reversing Clarke v. Matthewson, 2 Sumn., 262.
ment of the suit by the death of a party has always been held to have a very different effect; for such abatement amounts to a mere suspension, and not to a determination of the suit. It may again be put in motion by a bill of revivor, and the proceedings being revived, the cause proceeds to its regular determination as an original bill. The bill of revivor is not the commencement of a new suit, but is the mere continuation of the old suit. It is upon a ground somewhat analogous, that the circuit courts are held to have jurisdiction in cases of cross-bills, and injunction bills, touching suits and judgments already in those courts; for such bills are treated not strictly as original bills, but as supplementary or dependent bills, and so properly within the reach of the court, although the defendant (who was plaintiff in the original suit) lives out of the jurisdiction. A very strong application of the doctrine is to be found in the case of Dunn v. Clarke, 8 Pet., 1, where an injunction bill was sustained, although all the parties were citizens of the same state; the original judgment, under which the defendant in the injunction bill made title as the representative in the realty of the deceased, having been obtained by a citizen of another state in the same circuit court.
§ 635. The judiciary act of 1789 construed to authorize the bringing of a bill f revivor by an administrator without regard to citizenship.
But if any doubt could, upon general principles, be entertained upon this subject, we think it entirely removed by the thirty-first section of the judiciary act of 1789, ch. 20. That section provides that where, in any suit pending in the courts of the United States, either of the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitioner or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend any such suit or action until final judgment, and that the defendant shall be obliged to answer thereto accordingly; and the court before whom the cause is depending is empowered and directed to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. Other auxiliary provisions are made to carry this enactment into effect. Now in this section, congress manifestly treat the revivor of the suit, by or against the representative of the deceased, as a matter of right, and as a mere continuation of the original suit; without any distinction as to the citizenship of the representative, whether he belongs to the same state where the cause is depending, or to another state. Of the competency of congress to pass such an enactment under the constitution, no doubt is entertained. The present case falls directly within its purview; and we are, therefore, of opinion that the decree of the circuit court, dismissing the bill of revivor, ought to be reversed, and the cause remanded to the circuit court for further proceedings.
I take this opportunity of adding that I fully concur in all the reasoning of this court on this subject. After the decision had been made in the circuit court, upon more mature reflection, I changed my original opinion; and upon my expressing it in the circuit court, and upon the suggestion of the judges of that court, the case has been brought here for a final determination. I hope that I shall always have the candor to acknowledge my errors in a public manner whenever I have become convinced of them.
HATCH v. DORR.
(Circuit Court for Michigan: 4 McLean, 112, 113. 1846.)
Opinion by the COURT.
STATEMENT OF FACTS.-This is a creditor's bill for discovery, filed upon a judgment obtained in this court in January, 1845, against Dorr; and, an execution having been issued on the judgment, was returned nulla bona. The bill is filed in aid of the execution; S. N. Rendrick is made a defendant as the trustee of Dorr. The complainant was a citizen of the state of New York at the time the suit at law was commenced, but before the return of the execution by the marshal he removed into this state. To the bill there is a general demurrer, which assigns for cause of demurrer that the court has not jurisdic tion of the case, as the complainant abandoned his citizenship in New York, and is now a resident of Michigan, where the defendant resides.
§ 636. A creditor's bill in aid of an execution is a continuation of the suit at law, not an original proceeding.
This is not an original suit. Original bills are those which relate to some matter not before litigated in the court by the same persons, standing in the same interests." "Bills not original are those which relate to some matter already litigated in the court by the same persons, and which are an addition to or continuance of an original bill, or both." According to this definition, a creditor's bill is the continuation of the former controversy, so far as the fruits of the judgment are concerned. The complainant asks the aid of the court to reach the assets of the defendant so as to be made liable to his judgment, which assets have been secreted or fraudulently assigned to defeat the judgment. An injunction bill is said not to be an original bill, as it sets up some matter of equity against the plaintiff's claim, of which he could not avail himself at law. In that case, as in this, equitable considerations are inquired into in the one case to carry the judgment into effect, and in the other to prevent the plaintiff from availing himself unjustly of a legal advantage.
§ 637. A change of residence pending the suit does not oust jurisdiction.
If the case before us be not an original suit, but the extension of a former controversy, the change of residence by the plaintiff cannot affect the jurisdic tion of the court. 8 Pet., 1; 2 Wheat., 290; 4 Mason, 360; 5 Cranch, 288. It is well settled that, where jurisdiction of the court has once attached, no change of residence by the parties will oust that jurisdiction.
CONWELL v. WHITE WATER VALLEY CANAL COMPANY.
(Circuit Court for Indiana: 4 Bissell, 195–206. 1868.)
Opinion by MCDONALD, J.
STATEMENT OF FACTS.- This is a suit in equity. The defendants have demurred to the bill. And the question to be decided is whether the demurrer ought to be sustained. In support of the demurrer, several objections to the bill are urged. The principal point insisted on, however, is that this court has no jurisdiction to hear and determine the cause. Our attention will be chiefly directed to this objection.
The bill states that the complainant is a citizen of Indiana, and that the defendants, The White Water Valley Canal Company, and The Connersville Hydraulic Company, and the White Water Valley Railroad Company, are all Indiana corporations. There are twelve other defendants to the bill; and as to